2013 Unpublished Opinion No. 738
Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Molly J. Huskey, District Judge.
Judgment of conviction for conspiracy to commit burglary, burglary, and trespassing, affirmed.
Sara B. Thomas, State Appellate Public Defender; Sarah E. Tompkins, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy Attorney General, Boise, for respondent.
Evin Christopher Devan appeals from his judgment of conviction entered upon a jury verdict finding him guilty of conspiracy to commit burglary, Idaho Code §§ 18-1401, 18-1701; burglary, I.C. § 18-1401; and misdemeanor trespassing, I.C. § 18-7011. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
According to the State's evidence, Devan and six other perpetrators formed a plan to burglarize a property in a remote location. The group gathered into two vehicles, one which was driven by Devan, and drove to the property. After arriving, Devan and four perpetrators entered a green shop and started to collect items for removal. The owner of the property, donned in camouflage apparel and equipped with night vision goggles, watched the perpetrators from nearby brush. Eventually the owner called 911 and provided dispatch with a description of the vehicles and the license plate numbers. Two perpetrators who remained in the vehicles notified the others that they were being watched and the perpetrators returned to the vehicles and fled the scene. Thereafter, the vehicle driven by Devan was discovered at a motel and Devan was subsequently arrested.
Following trial, a jury convicted Devan of felony conspiracy, felony burglary, and misdemeanor trespassing. Devan filed a motion for a mistrial or, in the alternative, a new trial, which the district court denied. The district court imposed concurrent unified terms of five years with two years determinate for Devan's convictions of conspiracy and burglary. The district court suspended these sentences and placed Devan on probation for a term of five years. Additionally, the district court imposed a term of six months for the trespass conviction. Devan timely appeals.
Devan claims the prosecutor committed misconduct during closing argument that violated his right to a fair trial. While our system of criminal justice is adversarial in nature, and the prosecutor is expected to be diligent and leave no stone unturned, he or she is nevertheless expected and required to be fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). However, in reviewing allegations of prosecutorial ...